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Spousal Maintenance: Confronting the Emotion

By Amy Carron Day

In negotiations, as in mediation, many divorce attorneys find spousal maintenance to be one of the most difficult areas of conflict to resolve. This may be because spousal support often represents something entirely different for each spouse, and for each couple: Is maintenance meant to compensate for pain and hurt when the other party is leaving the marriage or having an affair? Is maintenance required to reimburse one party for past contributions to the career of the other party or to the family? Is maintenance viewed as an entitlement to one party or a source of guilt or failure to another? Was spousal support part of the “social contract” created within the family, which determined that one parent would stay home with children? Or were the parties never able to agree on such a social contract in the family during the marriage but one parent stayed home anyway? Is maintenance a source of anger because the receiving spouse is not working to his or her full “potential”?

As divorce attorneys, we know there are so many more variations, and that most couples do not have the same underlying view of maintenance; therefore, they have difficulty coming to a resolution in negotiations. There are certainly the legal, statutory factors to consider in negotiations; we can compare and contrast cases and discuss each factor and how they might be resolved by a judge, but such discussions are usually devoid of the real feelings the parties have about spousal maintenance. Thus, the parties never seem to find a resolution that does not feel thrust upon them. It is akin to discussing “grounds” for divorce in New York, when each statutory “ground” never really matches the couple's reasons for separating, but the couple is forced to accept a ground to obtain a divorce nonetheless. The law must be discussed and considered; nevertheless, I would argue that helping the parties to express and understand their underlying feelings about spousal support, with both parties present in a room together, could help the parties proceed to settlement with far greater ease.

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